[1] The measures to be taken by the court in a case where a petitioner states the requested information under the former Information Disclosure Act / The degree of specification of the requested information / In a case where the details and scope of the information requested to be disclosed cannot be deemed to be specified enough to determine the contents and scope of the information requested to be disclosed in a case seeking revocation

[2] Whether a public institution requested to disclose information may refuse disclosure on the sole ground of a general reason without asserting and proving the reason for non-disclosure under Article 9(1) of the former Official Information Disclosure Act (negative)

[3] The meaning of "business and trade secrets of corporations, etc." under Article 9 (1) 7 of the former Official Information Disclosure Act and the criteria and method for determining whether to disclose such information

[1] Article 10(1)2 of the former Act on the Disclosure of Information by Public Institutions (amended by Act No. 11991, Aug. 6, 2013; hereinafter “Information Disclosure Act”) provides that a person who requests the disclosure of information shall enter “matters of information requested for disclosure” in a written request for disclosure of information. Accordingly, when a claimant enters information subject to the request, the content and scope of the requested information should be specified to the extent that it can be determined from the perspective of the general public of society. In addition, in a case where a claimant seeks the revocation of the non-disclosure of information, if there are parts that can not be deemed to be specified to the extent that the content and scope of the information can be determined from the perspective of the general public of society because it is too comprehensive or blocking from among the information requested for disclosure, the court which examines the information should have the applicant submit the requested information held and managed by the public institution under the provisions of Article 20(2) of the Information Disclosure Act, and should specify the contents and scope of the requested information by means of perusal and examination.

[2] Article 13(4) of the former Official Information Disclosure Act (amended by Act No. 11991, Aug. 6, 2013; hereinafter “Information Disclosure Act”) provides that when a public institution makes a decision not to disclose information, it shall notify the applicant of the fact by specifying the reasons therefor. Articles 1, 3, and 6 of the Information Disclosure Act provide that the public institution shall, in principle, disclose information held and managed by the public institution in order to guarantee the citizen’s right to know and to ensure the citizen’s participation in state affairs and transparency in state administration. Accordingly, a public institution requested to disclose information held and managed by the citizen must disclose such information unless it falls under the grounds not for non-disclosure provided for in each subparagraph of Article 9(1) of the Information Disclosure Act. Even if such refusal is made, it shall specifically confirm and examine the contents of the information subject to disclosure, and it shall be asserted that certain part conflicts with the legal interests or fundamental rights and thus, falls under the grounds for non-disclosure provided for in Article 9(1)1 of the Information Disclosure Act.

[3] Article 9(1)7 of the Official Information Disclosure Act (amended by Act No. 11991, Aug. 6, 2013; hereinafter “Information Disclosure Act”) provides that “Information subject to non-disclosure is likely to seriously undermine legitimate interests of corporations, etc. if disclosed as business secrets of corporations, organizations, or individuals.” In light of the legislative purpose of the Information Disclosure Act, “management secrets of corporations, etc.” under Article 9(1)7 of the Information Disclosure Act and “business secrets of corporations, etc.” should be determined based on the following: (a) the purpose of disclosure is to ensure citizens’ right to know and secure citizens’ participation in state affairs and transparency in state affairs; and (b) thereby, to protect legitimate interests by preventing leakage of business secrets of corporations, etc.; and (c) the determination of whether any legitimate interests in disclosure exist should be made in light of the purpose of Article 9(1)7 of the Information Disclosure Act.”

[1] Articles 10(1)2 and 20(2) of the former Official Information Disclosure Act (Amended by Act No. 11991, Aug. 6, 2013) / [2] Articles 1, 3, 6, 9(1), and 13(4) of the former Official Information Disclosure Act (Amended by Act No. 11991, Aug. 6, 2013) / [3] Article 9(1)7 of the former Official Information Disclosure Act (Amended by Act No. 11991, Aug. 6, 2013)

[1] Supreme Court Decision 2007Du2555 Decided June 1, 2007 (Gong2007Ha, 995) / [2] Supreme Court Decision 2006Du4899 Decided February 8, 2007 / [3] Supreme Court Decision 2009Du19021 Decided November 24, 201 (Gong2012Sang, 49)

Plaintiff (Attorney Cho Jong-soo et al., Counsel for the plaintiff-appellant)

The Minister of Science, ICT

KS Telecom Co., Ltd. and two others (Law Firm Spah et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2012Nu31313 decided February 6, 2014

All appeals are dismissed. The costs of appeal are assessed against the Defendant Intervenor.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. As to the specification of the requested information

Article 10(1)2 of the former Official Information Disclosure Act (amended by Act No. 11991, Aug. 6, 2013; hereinafter “Information Disclosure Act”) provides that a person who requests information disclosure shall enter “the content and scope of the information subject to request for disclosure” in a written request for information disclosure. Accordingly, when a claimant enters the information subject to request for disclosure, the content and scope of the information subject to request should be specified to the extent that it can be determined from the perspective of the general public. In addition, in the case of seeking revocation of information non-disclosure, if there are parts that can not be deemed to have been specified to the extent that the contents and scope of the information can be determined from the perspective of the general public because it is too comprehensive or prohibited from among the information requested by the Plaintiff, the court which examines the information should, according to the provisions of Article 20(2) of the Information Disclosure Act, require the Defendant to submit the requested information that the applicant holds and manages, and the content and scope of the information subject to request by means of perusal and examination (see Supreme Court Decision 2507Du5757, Jun. 251, 257, 20007).

The court below determined that each information specified as stated in the judgment of the court of first instance in the amendment of the purport of the claim after perusal and examination of the information that the defendant possessed and managed was specified to the extent that it can be determined from a general person’s perspective as well as its contents and scope (hereinafter referred to as “information related to the cost of this case” from among the information stated in paragraph (b) of Attached Table 1-B as stated in the judgment of the court of first instance, which was disclosed after the judgment of the court of first instance, and that it is "information related to the cost of this case,” and the part excluding the information listed in paragraphs 5-1, 5-2, and 6 of Attached Table 1 as stated in the judgment of the court below, which was nonexistent or related to a third person.

In light of the above legal principles, the above judgment of the court below is just, and there is no error in the misapprehension of legal principles as to the specification of the requested information.

2. As to the procedural defect in a non-disclosure decision regarding the instant cost-related information

Article 13(4) of the Information Disclosure Act provides that when a public institution makes a decision not to disclose information, the applicant shall be notified of the fact by specifying the reasons for non-disclosure. Articles 1, 3, and 6 of the Information Disclosure Act provide that the public institution shall, in principle, disclose the information held and managed by the public institution to all citizens in order to guarantee citizens’ right to know and secure citizens’ participation in state affairs and transparency in state administration. Therefore, a public institution requested to disclose information held and managed by the public must disclose the information unless it falls under the reasons for non-disclosure provided for in each subparagraph of Article 9(1) of the Information Disclosure Act. Even if the public institution refuses such request, it shall specifically confirm and examine the contents of the information in question, and it shall only assert and prove that the part in question conflicts with any legal interest or fundamental rights and thus constitutes the reasons for non-disclosure provided for in Article 9(1)(e) of the Information Disclosure Act, and it is not allowed to refuse such disclosure on the grounds of general reasons (see, e.g., Supreme Court Decision 2006Du4899, Feb.

In an appeal litigation seeking the revocation of an administrative disposition, a disposition agency may add or alter other grounds only to the extent that the grounds for the initial disposition are recognized to be identical to the basic facts. The existence of such basic facts is determined based on the same specific facts prior to the legal evaluation of the grounds for disposition, and the relevant basic social facts are determined based on the same point of view. As such, it cannot be said that the initial grounds for an addition or alteration existed at the time of the disposition or the relevant party knew of such fact (see Supreme Court Decision 2009Du19021, Nov. 24, 201, etc.).

The lower court determined that the Defendant’s disclosure of only the general cost amount related to the mobile communications fee without presenting any particular grounds for the Plaintiff’s request for information disclosure constitutes unlawful because it constitutes a case where the Defendant did not specify the grounds for non-disclosure in making a non-disclosure decision on the instant cost-related information, and determined that the Defendant’s assertion of the grounds for non-disclosure that the instant cost-related information constitutes a corporation’s business secrets only during the instant lawsuit is not permissible as it added the grounds for non-

In light of the above legal principles, the above determination by the court below is just, and there is no error in the misapprehension of legal principles as to the base point of time for determining whether a non-disclosure decision exists or not and the addition or modification of the grounds for disposition.

3. As to whether information subject to non-disclosure constitutes information

A. The purpose of the Information Disclosure Act is to guarantee the citizen’s right to know and secure the citizen’s participation in government affairs and transparency in government affairs by prescribing matters necessary for the citizen’s request for disclosure of information held and managed by a public institution and the duty to disclose information. Accordingly, all information held and managed by a public institution is subject to disclosure in principle. However, in order to protect legitimate interests by preventing the divulgence of confidential information about business activities of a business chain corporation, etc., Article 9(1)7 of the Information Disclosure Act provides that “information that is deemed likely to seriously undermine the legitimate interest of a corporation, etc. if disclosed as confidential business or management of a corporation or an individual” as prescribed by Article 9(1)7 of the Information Disclosure Act. In light of the legislative purpose of the Information Disclosure Act, the term “management and business secrets of a corporation, etc.” under Article 9(1)7 of the Information Disclosure Act refers to all information on business activities that are favorable to others, and whether such disclosure is reasonable or not should be determined depending on whether there is a legitimate interest to refuse such disclosure.”

B. On the grounds delineated below, the lower court determined that the instant terms and conditions and charges-related information did not constitute information subject to non-disclosure under Article 9(1)7 of the Information Disclosure Act, and determined additionally that, among the sales reports of the instant cost-related information, the items of mobile communication service (cellul or PC) and the items of mobile communication service (IMT200 (3G) in the business statistics (type 3), business statistics specifications (type 17, Form 17-1, Form 17-2, Form 17-2) do not constitute information subject to non-disclosure.

1) Mobile communications services are provided using public resources such as radio waves and radio frequencies, and have significant meanings in the lives and society of the entire citizens. Therefore, it is highly necessary to transparently disclose whether high-quality services need to be provided at fair and reasonable prices or public interest is recognized, and the state’s supervisory and regulatory authority is exercised appropriately. The relevant provisions of the Telecommunications Business Act and the Telecommunications Business Accounting Division Standards for Telecommunications Business include: (a) calculation of the general cost through separation of accounts with other businesses, etc. in regard to telecommunications business, taking into account the public nature of radio waves and radio frequencies; and (b) imposition of certain regulations on the adequacy of cost.

2) The basic contents of the terms and conditions of this case and information on fees are information on the terms and conditions of use submitted by the intervenors to the Defendant, which cannot be deemed as trade secrets. The part explaining the fees system and the content, purport, etc. of the modified terms and conditions of use and additional services is stated only in general. Thus, even if disclosed, there is no risk of considerable harm to the legitimate interests of the intervenors. In light of the characteristics of the mobile communications market, it cannot be deemed that the disclosure of the terms and conditions of this case and information on fees for which a considerable period has already elapsed

3) Each item listed in the business report is composed of the total amount of individual items, and even if disclosed, it is not recognized that there is a risk of significantly undermining the legitimate interests of the common telecommunications business operator. Information, such as the number of quarterly subscribers, number of lines, monetary volume, number of employees, etc. listed in the business statistics statement (Form 17), appears to be the basic items necessary to assess the reasonable calculation of fees by service product, and ② the relevant information consists of comprehensive items and figures, it is difficult to view that the disclosure of the information can confirm the specific status and structure of the relevant business operator’s assets, profits and expenses, and ③ the Defendant has already disclosed the number of subscribers by service on its own homepage, and the report on the evaluation of competition in the telecommunications market in 2010 prepared by the Information and Communications Policy Research Institute, is difficult to view it as an important business secret, in light of the fact that the participants’ annual number of telephone calls and the quantity of net telephone calls are written.

C. Such determination by the court below is just in accordance with the above legal principles, and there is no error in the misapprehension of legal principles as to the scope of information subject to non-disclosure.

4. Conclusion

Therefore, all appeals are dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Ki-taik (Presiding Justice)